Parliament was yesterday thrown to pandemonium, when pro government and Opposition MPS went berserk, the hammer and tongs way, against each other. The house of laws, literally threw decorum over the window, all in the name of enacting the now controversial bill, Security Laws(Amendment) Bill 2014. For close to two weeks, government has been under pressure from the civil society and Opposition, to amend the bill that highly violates and infringes on the constitution we passed in August 2010.
As a country, we are badly hit be terrorism but instead of our leaders uniting at this critical time, they have chosen the myopic route, of baseless politics. Last evening, we witnessed the usual rivalry between Jubilee and CORD on the floor of the house. James Smart a TV anchor in one of the media houses twitted; “In our political division, we failed to isolate and deal with the enemy but are happy to exhibit our political rivalries. Let history record this.” The ugly scenes that took place in parliament yesterday have immensely tainted our international image. We will take years to redeem that image, on condition that this country does not go through an injurious moment akin to what happened. It’s that bad.
The Opposition missed an invaluable opportunity to sponsor amendment to the Security bill. Instead, they chose mediocrity, of antagonizing their counterparts, pro-government. It appeared CORD MPs were reading from the same script, to ensure the bill is not passed using all means possible. That did not happen though, as the controversial bill was passed in the most acrimonious way ever to be witnessed in Kenya Parliament’s history. It all started with the newly “appointed through consensus” ODM chairman, John Mbadi, MP for Suba, when he grabbed the order paper from Hon. Asman Kamama (who also chairs parliamentary committee on National Security and Administration) and tore it into pieces. I would say without any misgivings that the opposition has itself to blame for passing of the bill. Nonetheless, am neither sympathetic to the Jubilee side. They too, embarrassed the country by physically assaulting the CORD senators in the public gallery.
At the time of preparing this article, the President assented to the bill ; giving it life. This is what I was forced, naturally to delete; (The eyes are now directed to the President, to either bite the bullet by rejecting the bill, meaning it will have to be taken back to Parliament for further deliberations or isolate himself from the people and in so doing, polarizing the country.) I have always thought Justin Muturi, the National Assembly Speaker was never from the word go, the best candidate to head the highly influential legislature. He has failed miserably to show leadership and in many occasions cited not to be impartial. A case in point, yesterday, Justin Muturi overlook the standing orders, by overseeing passing of a law in an acrimonious house.
Articles 62 through 66 of the bill amending the National Intelligence Security Act broaden the powers of security officials to arrest and detain people and could violate due process rights. The bill expands the powers of the National Intelligence Service (NIS) to stop and detain suspects, search and seize private property, and monitor communications without a court warrant. This section has however been amended to read in part…”the NIS shall hand over suspects to the nearest police station immediately.” This section posed a threat of being abused, taking us back to the days of detention and torture of political activists. Article 62 authorizes NIS officers to “do anything necessary to preserve national security” and to detain people even on suspicion of “engaging in any act or thing or being in possession of anything which poses a threat to national security.”
Other amendments that propose alarming changes to current legislation include:
- Article 18, to enable police to extend pre-charge detention for up to 90 days with court authorization, well beyond the 24-hour limit that Kenyan law currently allows. This contravenes the constitution; pursuant to the provisions of Article 49 (1) (h) of the Constitution of Kenya;
- “An arrested person has the right –
- (1) (h) to be brought before a court as soon as reasonably possible, but not later than-
- (i) Twenty-four hours after being arrested; or
- (ii) If the twenty-four hours ends outside ordinary court hours, or on a day that is
- not an ordinary court day, the end of the next court day.”.
- Article 19, to allow prosecutors to not disclose evidence to the accused if “the evidence is sensitive and not in the public interest to disclose.”
- Article 66, to enable NIS officers to carry out “covert operations,” broadly defined as “measures aimed at neutralizing threats against national security.”
Several other provisions introduce new, broadly defined offenses that could be used against people who associate, knowingly or not, with terrorist suspects, the organizations said.
For example, article 72, section 9(a), on “facilitation of terrorist acts” punishes “a person who advocates, glorifies, advises, incites, or facilitates” acts of terrorism. This language could be used against the lawyers of suspects, some Kenyan lawyers fear, or to limit speech. The offense is punishable with up to 20 years in prison.
Article 73, section 12(a)(2), creates a presumption that the “unlawful possession of improvised explosive devices, assault rifles, rockets propelled grenades or grenades shall be presumed to be for terrorist purposes” – placing the burden on the defendant to prove they were not using the weapon for terrorist purposes. The law provides punishment of up to 20 years in prison for anyone who uses a weapon for purposes of terrorism in committing an offense.
The bill also would amend Kenya’s refugee laws, including article 58, which would cap the number of refugees in Kenya at 150,000 and compel refugees and their families to stay only in designated camps while their applications for asylum are processed. The provisions contravene both Kenya’s Refugee Act of 2006 and international law, including the Organization of African Unity (OAU) Convention Governing the Specific Aspects Relating to Refugee Problems in Africa, which prohibit denying refugees and asylum seekers entry into the country.
The security bill includes provisions that would make it harder to expose and criticize violations by security forces, the groups said. Article 75, section 30(a) of the bill would punish with up to 14 years in prison anyone who “publishes or utters a statement that is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism.” This overly broad provision could be interpreted to apply to social media or any other public forum. Social media has been very fast in exposing and humiliating corrupt public officers and other vices as well as ashaming the culprits in the popular twitter streets. This unfortunately, will be a thing of the past. Woo unto you who share sensitive images on social media, soon you’ll be a guest of the state.
The bill expands the understanding of “radicalization” to possibly include activism, with article 73, section 12(d), describing “a person who adopts or promotes an extreme belief system for the purpose of facilitating ideologically based violence to advance political, religious and social change.” The unclear language could be interpreted to prosecute political and human rights activists, with sentences of up to 30 years.
Article 75, sections 30(f)(1) and (2), also broadly prohibit broadcasting any information likely to undermine investigations or security operations without police authorization and prohibits publishing or broadcasting photographs of victims of a terrorist attack without police consent. Investigative journalists have their hands tied with this article due to generalities. Kenyans will have to rely on the police to detect, deter, unravel and do thorough investigations, which has been a tall order for them in the past. Investigative pieces and expose will be slowly chocked to extinction.
The security bill would limit basic rights to freedom of assembly and association with vague provisions subject to abuse, the groups said. Article 4 would authorize the cabinet secretary for interior, a presidential appointee, to decide when and where public meetings can be held. This section has since been deleted.
Funny enough, social media has been divided right in the middle, taking sides and remaining ‘loyal’ to their tribal and regional lords. Even the educated have not been spared, in fact they are the most tribal. I have chosen the rare trajectory, of objective criticism and not necessarily rubber stamping every opinion our politicians make, regardless of whether I voted for them. When we owe our allegiance to nobody, we shall have begun the grueling task of saving this country from ourselves.